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Tuesday, March 25, 2014

The Nadon Reference: Surprising, but not "Wrong"

There's been a lot of criticism in recent days about the Supreme Court's decision on the Supreme Court Act reference, determining whether or not Marc Nadon is eligible for appointment to the Supreme Court.

Background

Justice Nadon was admitted to the Barreau du Quebec in 1974, and practiced as a Quebec lawyer (though with a stint in his firm's London England office) for 19 years, until he was appointed to the Federal Court in 1993. In 2001 he was appointed to the Federal Court of Appeal, and he became supernumerary (semi-retired) in 2011.

He was appointed to the Supreme Court of Canada last October, to replace Justice Morris Fish. However, a challenge to his eligibility was mounted, so he stepped down pending its resolution.

The challenge is based on s.6 of the Supreme Court Act, which requires three of the judges on the Supreme Court of Canada to be "appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province."

This isn't about appeasing Quebec. At least, not entirely. Most of Canada follows the English tradition of "common law"; however, Quebec's legal system is based in the continental European "civil law" system. It's different. And it's important that the differences be acknowledged and recognized at the Supreme Court level, and that judges be appointed with civil law education and expertise.

As a further point of background, it's important to note that s.5 of the Supreme Court Act provides that a person is eligible for appointment to the Supreme Court if he or she "is or has been a judge of a superior court of a province or a barrister or advocate of at least ten years standing at the bar of a province." [My emphasis]

So there's no question that Justice Nadon is eligible to sit on the Supreme Court, under s.5, but the question is whether or not he's able to fill one of the mandatory Quebec seats on the Court, as required by s.6. Since he's replacing Justice Fish, he needs to meet that criterion. And the problem is obvious: He is not a judge of the Court of Appeal or of the Superior Court of the Province of Quebec, and he also isn't among the the advocates of that Province. (Technically, it's common to perceive a judge as still being a lawyer. However, the treatment of lawyers and judges is distinctly different within the context of the Supreme Court Act.)

The further question is whether or not the Federal government has the power to unilaterally amend the relevant provisions of the Supreme Court Act to make Justice Nadon eligible.

From a 'constitutional law' perspective, the decision on the amendment of s.6 is the most interesting. But that's a far more complex matter, and not the one that has occupied much of the public's attention.

The majority applied a 'plain reading' literal approach to the language of s.6: It says "from among", which implies that the appointment has to currently be part of that group. It's really a very simple argument, especially from a linguistic perspective. They highlight that the drafters of the language intended 'former members' to be eligible for appointment under s.5, and omitted any reference to former members in s.6. This is a legitimate application of the principles of statutory interpretation: If those who drafted the provision intended former Quebec lawyers to be eligible for appointment, why would they have used similar language to that in s.5?

The majority further argued that there was an enduring intention, since 1875 when the provision was first enacted, to exclude former members of the Quebec bar. Justice Moldaver picks up on this, and attacks it as an assertion without any historical foundation, but likewise I have not seen any indication of any other former members having been appointed to the Supreme Court. In other words, while the majority may have overstated the point when purporting to be upholding a historical consensus, it's more accurate to say that the question appears to have never arisen in the past.

Justice Moldaver wrote a lone dissent. In a nutshell, he argues that sections 5 and 6 are "inextricably linked", such that the requirements in s.6 referentially incorporate the 'past member' eligibility in s.5. (Put simply, he's saying that the intention behind s.6 is say that, for three of the judges on the Court, the "Province" referred to in s.5 must be Quebec.)

The Criticisms

The legal community is surprised. I can say that I expected the majority decision to be along the lines of Justice Moldaver's dissent. That was probably a widespread expectation.

As I said, I'm surprised by the outcome. It has the result that an appointment to the Federal Court is probably not a track to possible appointment to the Supreme Court for Quebec lawyers, and that from the Federal Court only non-Quebec judges are likely to be considered for Supreme Court appointments, essentially treating Federal Court judges from Quebec as being without a Province.

It's a pretty arbitrary result. Nobody suggests that Marc Nadon isn't a good enough judge, and nobody suggests that he's no longer a Quebecer in any particular sense, or no longer understands the tenets of Quebec's Civil Code.

That's why we expected the Supreme Court to move along the lines of Justice Moldaver's dissent: It's a bit of a forced reading of the language, but it's a results-driven logic, and the result makes sense.

The majority, instead, took a literal reading of the language.

But the criticisms against them for doing so are totally unfounded - indeed, they're a reversal of the usual criticisms of judicial activism. Normally, the Court takes more heat for not standing to the literal, and for engaging in forced and results-driven analyses to get to the conclusion they want. There is no question in my mind that the majority's interpretation is cogent and available on the wording of the statute. I don't think it's the only possible interpretation, nor do I think it's the best one, but I'll save my criticisms for decisions that deserve them.

*****

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